```

[Federal Register Volume 86, Number 138 (Thursday, July 22, 2021)]
[Proposed Rules]
[Pages 38594-38607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15528]

=======================================================================
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DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2017-BT-STD-0048]
RIN 1904-AE85

Energy Conservation Program: Definition of Showerhead

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Notice of proposed rulemaking and public meeting.

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SUMMARY: In this notice of proposed rulemaking (``NOPR''), the U.S. 
Department of Energy (``DOE'') proposes to revise the current 
definition of ``showerhead'' adopted in the December 16, 2020 final 
rule (``December 2020 Final Rule'') by reinstating the prior definition 
of ``showerhead.'' This reinstatement of the prior definition is 
consistent with the purposes of the Energy Policy and Conservation Act 
(``EPCA''). Further, DOE has tentatively determined that, in 
reinstating the prior definition of ``showerhead,'' all showerheads 
within a product containing multiple showerheads will be considered 
part of a single showerhead for determining compliance with the 2.5 
gallons per minute (``gpm'') standard. In addition, DOE proposes to 
remove the current definition of ``body spray'' adopted in the December 
2020 Final Rule. Finally, DOE does not propose any changes to the 
definition of ``safety shower showerhead'' adopted in the December 2020 
Final Rule. DOE invites comment on all aspects of this proposal, 
including data and information to assist in evaluating whether the 
definition of ``showerhead'' from the October 2013 Final Rule should be 
reinstated, and announces a webinar to collect comments and data on its 
proposal.

DATES: 

[[Page 38595]]

    Meeting: DOE will hold a webinar on Tuesday, August 31, 2021, from 
1:00 p.m. to 4:00 p.m. See section V., ``Public Participation,'' for 
webinar registration information, participant instructions, and 
information about the capabilities available to webinar participants.
    Comments: DOE will accept comments, data, and information regarding 
this NOPR no later than September 20, 2021. See section V, ``Public 
Participation,'' for details.

ADDRESSES: Interested persons are encouraged to submit comments using 
the Federal eRulemaking Portal at https://www.regulations.gov. Follow 
the instructions for submitting comments. Alternatively, interested 
persons may submit comments by email to the following address: 
[email protected]. Include ``Definition of Showerhead 
NOPR and docket number EERE-2021-BT-STD-0016 and/or RIN 1904-AE85 in 
the subject line of the message. Submit electronic comments in 
WordPerfect, Microsoft Word, PDF, or ASCII file format, and avoid the 
use of special characters or any form of encryption.
    Although DOE has routinely accepted public comment submissions 
through a variety of mechanisms, including postal mail, or hand 
delivery/courier, the Department has found it necessary to make 
temporary modifications to the comment submission process in light of 
the ongoing coronavirus disease 2019 (``COVID-19'') pandemic. DOE is 
currently accepting only electronic submissions at this time. If a 
commenter finds that this change poses an undue hardship, please 
contact the Appliance Standards Program staff at (202) 586-1445 to 
discuss the need for alternative arrangements. Once the Covid-19 
pandemic health emergency is resolved, DOE anticipates resuming all of 
its regular options for public comment submission, including postal 
mail and hand deliver/courier.
    No telefacsimiles (faxes) will be accepted. For detailed 
instructions on submitting comments and additional information on the 
rulemaking process, see section V (Public Participation) of this 
document.
    Docket: The docket for this activity, which includes Federal 
Register notices, comments, and other supporting documents/materials, 
is available for review at https://www.regulations.gov. All documents 
in the docket are listed in the https://www.regulations.gov index. 
However, not all documents listed in the index may be publicly 
available, such as information that is exempt from public disclosure.
    The docket web page can be found at https://www.regulations.gov/docket/EERE-2021-BT-STD-0016. The docket web page contains instructions 
on how to access all documents, including public comments, in the 
docket. See Section V. for information on how to submit comments 
through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: 
    Mr. John Cymbalsky, U.S. Department of Energy, Office of Energy 
Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 
1000 Independence Avenue SW, Washington, DC 20585-0121. Email: 
[email protected].
    Ms. Amelia Whiting, U.S. Department of Energy, Office of the 
General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 
20585. Telephone: (202) 586-2588. Email: [email protected].
    For further information on how to submit a comment, review other 
public comments and the docket, or participate in the public meeting, 
contact the Appliance and Equipment Standards Program staff at (202) 
287-1445 or by email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
    A. Authority
    B. Background
II. Synopsis of the Notice of Proposed Rulemaking
III. Discussion
    A. Withdrawal of DOE's Current Definition of ``Showerhead''
    1. EPCA's Definition of ``Showerhead'' Is Ambiguous
    2. The December 2020 Final Rule's Definition of ``Showerhead'' 
Is Inconsistent With EPCA's Purposes
    3. Congress Did Not Require Reliance on ASME for the Definition 
of ``Showerhead''
    4. The Previous Definition of ``Showerhead'' Did Not Effectively 
Ban Multi-Headed Showerheads
    5. The December 2020 Final Rule's Definition of ``Showerhead'' 
Falls Within the NTTAA and OMB Circular A-119 Exception to Adherence 
to Voluntary Consensus Standards Because It Is Inconsistent With 
EPCA and Impractical
    B. Withdrawal of DOE's Current Definition of ``Body Spray''
    C. Safety Shower Showerhead
IV. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 12630
    J. Review Under Treasury and General Government Appropriations 
Act, 2001
    K. Review Under Executive Order 13211
V. Public Participation
    A. Participation in the Webinar
    B. Procedure for Submitting Prepared Statements for Distribution
    C. Conduct of the Webinar
    D. Submission of Comments
VI. Approval of the Office of the Secretary

I. Introduction

    The following section briefly discusses the statutory authority 
underlying this proposed rule, as well as some of the relevant 
historical background related to showerheads, the subject of this NOPR.

A. Authority

    Title III of EPCA (42 U.S.C. 6291 et seq.) sets forth a variety of 
provisions designed to improve energy efficiency and, for certain 
products, water efficiency.\1\ Part B of Title III \2\ establishes the 
``Energy Conservation Program for Consumer Products Other Than 
Automobiles,'' which includes showerheads (with the exception of safety 
shower showerheads)--the subject of this proposed rulemaking. (42 
U.S.C. 6292(a)(15)) Under EPCA, the energy conservation program 
consists essentially of four parts: (1) Testing, (2) labeling, (3) 
Federal energy conservation standards, and (4) certification and 
enforcement procedures.
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    \1\ All references to EPCA in this NOPR refer to the statute as 
amended through the Energy Act of 2020, Public Law 116-260 (Dec. 27, 
2020).
    \2\ For editorial reasons, upon codification in the U.S. Code, 
Part V was redesignated as Part A.
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B. Background

    EPCA defines a showerhead as ``any showerhead (including a handheld 
showerhead), except a safety shower showerhead.'' (42 U.S.C. 
6291(31)(D)) In addition to defining ``showerhead,'' EPCA established a 
maximum water use threshold of 2.5 gpm applicable to ``any 
showerhead.'' (42 U.S.C. 6295(j)(1)). The definition of ``showerhead'' 
and the water conservation standard for showerheads were added to EPCA 
by the Energy Policy Act of 1992 (Pub. L. 102-486 (Oct. 24, 1992)) 
(``EPAct 1992''). Until 2013, DOE regulations did not contain a 
separate definition for ``showerhead.'' (See 78 FR 62970)
    On May 19, 2010, DOE published in the Federal Register a Notice of 
Availability of a proposed interpretive rule regarding the definition 
of

[[Page 38596]]

``showerhead.'' 75 FR 27926 (``2010 Draft Interpretive Rule''). In this 
2010 Draft Interpretive Rule, available at https://www.regulations.gov/document?D=EERE-2010-BT-NOA-0016-0002, DOE discussed how there was 
uncertainty about how the EPCA definition of ``showerhead'' applies to 
the diversified showerhead product offerings. Id. at 1. To address this 
uncertainty, DOE proposed to define a ``showerhead'' as ``any plumbing 
fitting that is designed to direct water onto a bather.'' Id. at 2 
(footnote omitted). As such, DOE stated it would ``find a showerhead to 
be noncompliant with EPCA's maximum water use standard if the 
showerhead's standard components, operating in their maximum design 
flow configuration, taken together use in excess of 2.5 gpm.'' Id. at 
3.
    On March 4, 2011, DOE formally withdrew the draft interpretive rule 
and issued showerhead enforcement guidance. (See https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf) (``2011 Enforcement Guidance'') In the 2011 
Enforcement Guidance, DOE explained that it had received several 
complaints alleging that certain showerhead products exceeded EPCA's 
2.5 gpm standard. DOE stated that it had learned that some had come to 
believe that a showerhead that expels water from multiple nozzles 
constituted not a single showerhead, but rather multiple showerheads 
and thus could exceed the maximum permitted water use by a multiple 
equal to the number of nozzles on the showerhead. Id. at 1. Following a 
review of the record from the 2010 Draft Interpretive Rule, DOE 
concluded that the term ``any showerhead'' has been and continues to be 
sufficiently clear such that no interpretive rule was needed. Id. at 2. 
Specifically, DOE stated that ``multiple spraying components sold 
together as a single unit designed to spray water onto a single bather 
constitutes a single showerhead for the purpose of the maximum water 
use standard.'' Id. DOE, in its discretion, addressed the 
misunderstanding of how to measure compliance with the standard by 
providing a two-year enforcement grace period to allow manufacturers to 
sell any remaining noncompliant products. Id. at 2-3.
    DOE proposed revising the test procedure for showerheads and other 
products and to change the regulatory definition of showerheads. 77 FR 
31742 (May 30, 2012) (``May 2012 NOPR''). DOE proposed to adopt 
definitions for four terms related to showerheads--``fitting'', 
``accessory'', ``body spray'', and ``showerhead''--in order to address 
certain provisions of the revised American Society of Mechanical 
Engineers/American National Standards Institute (``ASME/ANSI'') test 
procedures that were not contemplated in the versions referenced by the 
existing DOE test procedure, and to establish greater clarity with 
respect to product coverage. 77 FR 31742, 31747.\3\ Specifically, DOE 
proposed to define ``showerhead'' as ``an accessory, or set of 
accessories, to a supply fitting distributed in commerce for attachment 
to a single supply fitting, for spraying water onto a bather, typically 
from an overhead position, including body sprays and hand-held 
showerheads, but excluding safety shower showerheads.'' 77 FR 31742, 
31755. The proposed definition clarified that DOE considered a ``body 
spray'' to be a showerhead for the purposes of regulatory coverage. 77 
FR 31742, 31747.
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    \3\ DOE also proposed to adopt a definition for ``hand-held 
showerhead'' in the 2012 NOPR. 77 FR 31742, 31747. This NOPR does 
not reference that discussion, as DOE is not proposing any edits to 
the existing definition of ``hand-held showerhead.''
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    Responding to comments on the May 2012 NOPR, DOE issued on April 8, 
2013 a supplemental notice of proposed rulemaking (``SNOPR'') in which 
DOE proposed a revised definition of ``showerhead'' and withdrew its 
proposal to include ``body sprays'' in the definition of ``showerhead'' 
in light of concerns raised by commenters and DOE's need to further 
study the issue. 78 FR 20832, 20834-20835, 20841 (``April 2013 
SNOPR''). The SNOPR's modified definition of ``showerhead'' removed the 
term ``accessory'' from the definition based on comments about the use 
of the term. 78 FR 20832, 20834. Under the proposed modified 
definition, a ``showerhead'' is ``a component of a supply fitting, or 
set of components distributed in commerce for attachment to a single 
supply fitting, for spraying water onto a bather, typically from an 
overhead position, including hand-held showerheads, but excluding 
safety shower showerheads.'' 78 FR 20832, 20834. DOE also requested 
comment on whether to define the term ``safety shower showerhead'' to 
address which products qualify for exclusion from coverage under EPCA 
and DOE regulations. 78 FR 20832, 20835, 20840.
    On October 23, 2013, DOE issued a final rule amending test 
procedures for showerheads and other products and adopting definitions 
for products including showerheads. 78 FR 62970 (``October 2013 Final 
Rule''). In this final rule, DOE adopted in substance the modified 
definition of ``showerhead'' proposed in the April 2013 SNOPR. 78 FR 
62970, 62986. The October 2013 Final Rule defined ``showerhead'' as ``a 
component or set of components distributed in commerce for attachment 
to a single supply fitting, for spraying water onto a bather, typically 
from an overhead position, excluding safety shower showerheads.'' 78 FR 
62970, 62986. DOE did not finalize the definition of ``body spray'' 
proposed in the May 2012 NOPR. 78 FR 62970, 62973. DOE also declined to 
adopt a definition of ``safety shower showerhead'' and explained that 
it was unable to identify a definition that would clearly distinguish 
these products from the showerheads covered under EPCA. 78 FR 62970, 
62974.
    On August 13, 2020, DOE proposed revising the definition of a 
``showerhead'' to be consistent with the most recent ASME standard. 85 
FR 49284 (``August 2020 NOPR''). DOE also proposed to adopt definitions 
of ``body spray'' and ``safety shower showerhead'' and to clarify 
whether the current test procedure would apply to the proposed 
definitional changes. 85 FR 49284, 49285. In addition, DOE proposed to 
amend the test procedure for showerheads to address the testing of a 
single showerhead within a multiheaded showerhead. 85 FR 49284, 49292.
    Following the consideration of comments received in response to the 
August 2020 NOPR, DOE issued the December 16, 2020 Final Rule, which 
amended the definition for ``showerhead'' and adopted definitions for 
``body spray'' and ``safety shower showerhead.'' 85 FR 81341. 
Specifically, the December 2020 Final Rule amended the meaning of 
``showerhead'' in a manner that would incorporate the ASME definition 
for this term by defining it to mean ``an accessory to a supply fitting 
for spraying onto a bather, typically from an overhead position. 85 FR 
81341, 81343, 81359. Under the December 2020 Final Rule's 
interpretation, each showerhead included in a product with multiple 
showerheads would separately be required to meet the 2.5 gpm standard 
established in EPCA. 85 FR 81341, 81342. In addition, DOE established a 
definition for ``body spray'', citing the need to address ambiguity 
about whether body sprays were considered showerheads under the October 
2013 Final Rule. 85 FR 81341, 81342, 81350. DOE defined the term ``body 
spray'' as ``a shower device for spraying water onto a bather from 
other than the overhead position. A body spray is not a showerhead.'' 
85 FR 81341, 81359. Lastly, DOE defined the term ``safety shower 
showerhead'' by incorporating by reference the definition of ``safety

[[Page 38597]]

shower showerhead'' from the ANSI/International Safety Equipment 
Association (``ISEA'') Z358.1-2014,\4\ such that a ``safety shower 
showerhead'' is ``a showerhead designed to meet the requirements of 
ISEA Z358.1.'' 85 FR 81341, 81359. The December 2020 Final Rule 
indicated that leaving the term ``safety shower showerhead'' undefined 
would cause confusion. 85 FR 81341, 81351. DOE did not finalize the 
test procedure amendments that had been proposed in the August 2020 
NOPR. 85 FR 81341.
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    \4\ ANSI/ISEA Z358.1-2014, ``American National Standard for 
Emergency Eyewash and Shower Equipment.''
---------------------------------------------------------------------------

    On January 20, 2021, the President issued Executive Order 13990, 
``Protecting Public Health and the Environment and Restoring Science To 
Tackle the Climate Crisis.'' 86 FR 7037 (Jan. 25, 2021) (``E.O. 
13990''). Section 1 of that Order lists a number of policies related to 
the protection of public health and the environment, including reducing 
greenhouse gas (``GHG'') emissions and bolstering the Nation's 
resilience to the impacts of climate change. 86 FR 7037, 7041. Section 
2 of the Order instructs all agencies to review ``existing regulations, 
orders, guidance documents, policies, and any other similar agency 
actions promulgated, issued, or adopted between January 20, 2017, and 
January 20, 2021, that are or may be inconsistent with, or present 
obstacles to, [these policies].'' Id. Agencies are directed, as 
appropriate and consistent with applicable law, to consider suspending, 
revising, or rescinding these agency actions. Id.
    While E.O. 13990 triggered the Department's re-evaluation, DOE is 
relying on the analysis presented below, based upon EPCA, to revise the 
definition adopted in the December 2020 Final Rule.

II. Synopsis of the Notice of Proposed Rulemaking

    In this proposed rule, DOE proposes to withdraw the December 2020 
Final Rule's redefinition of ``showerhead,'' and to reinstate the 
October 2013 Final Rule's definition of ``showerhead.'' DOE therefore 
proposes that the term ``showerhead'' be defined, as it was defined in 
DOE's regulations for close to a decade prior to the December 2020 
Final Rule, as ``a component or set of components distributed in 
commerce for attachment to a single supply fitting, for spraying water 
onto a bather, typically from an overhead position, excluding safety 
shower showerheads.'' 78 FR 62970, 62986. As such, DOE also proposes to 
withdraw December 2020 Final Rule's interpretation that each showerhead 
included in a product with multiple showerheads would separately be 
required to meet the 2.5 gpm standard established in EPCA. Whereas in 
the December 2020 Final Rule DOE changed the definition of 
``showerhead'' because the Department weighed consistency with ASME 
more heavily than water conservation, DOE has reconsidered this balance 
and has come to a different policy conclusion that water conservation 
is a more important EPCA purpose than consistency with ASME (with which 
DOE has no statutory obligation to align its definition). DOE believes 
that the steps it is proposing in this proposed rule better effectuate 
EPCA's water conservation purposes.
    DOE also proposes to withdraw the definition of ``body spray'' 
adopted in the December 2020 Final Rule. DOE believes that the current 
definition of ``body spray'' is inconsistent with the express purpose 
of EPCA to conserve water by improving the water efficiency of certain 
plumbing products and appliances as the definition may lead to 
increased water use and does not best address the relationship between 
body sprays and showerheads. This is because the only difference 
between a ``body spray'' and a ``showerhead'' is the installation 
location, as shown by the similar treatment of the two products in the 
marketplace. DOE does not propose any changes to the definition of 
``safety shower showerhead'' as leaving the term undefined may cause 
confusion about what products are subject to the energy conservation 
standards.

III. Discussion

A. Withdrawal of DOE's Current Definition of ``Showerhead''

    DOE has undertaken a review of the December 2020 Final Rule. DOE 
proposes to withdraw the December 2020 Final Rule's definition of 
``showerhead'' and reinstate the definition of ``showerhead'' from the 
October 2013 Final Rule. DOE has tentatively determined that EPCA's 
definition of showerhead is ambiguous and that the December 2020 Final 
Rule's definition of ``showerhead'' is not consistent with EPCA's 
purposes: To conserve water by improving water efficiency of certain 
plumbing products and appliances and to improve energy efficiency of 
major appliances and consumer products. See 42 U.S.C. 6201. DOE has 
also tentatively determined, upon review and in light of present facts 
and circumstances, that Congressional intent does not require DOE to 
adopt the ASME definition for ``showerheads;'' that the October 2013 
Final Rule did not effectively ban multi-headed showerheads from the 
market; and that the December 2020 Final Rule's definition of 
``showerhead'' is inconsistent with EPCA's purposes and falls within 
the National Technology Transfer and Advancement Act of 1995 
(``NTTAA'') and OMB Circular A-119 exception to the use of voluntary 
consensus standards. As such, DOE proposes to reinstate the definition 
of ``showerhead'' from the October 2013 Final Rule, such that the term 
would again be defined as ``a component or set of components 
distributed in commerce for attachment to a single supply fitting, for 
spraying water onto a bather, typically from an overhead position, 
excluding safety shower showerheads.'' See 78 FR 62970, 62986.
1. EPCA's Definition of ``Showerhead'' Is Ambiguous
    EPCA defines the term ``showerhead'' as ``any showerhead (including 
a handheld showerhead), except a safety shower showerhead.'' (42 U.S.C. 
6291(31)(D)). Congress adopted this definition of showerhead in 1992 as 
part of the Energy Policy Act. Thereafter, however, between 1992 and 
2010, the designs of showerhead diversified into a myriad of products 
including waterfalls, shower towers, rainheads, and shower systems. 
(See https://www.regulations.gov/document?D=EERE-2010-BT-NOA-0016-0002) 
In the 2010 Draft Interpretive Rule, DOE noted that it had become aware 
of uncertainty in how the EPCA definition and standard applies to such 
products. Id. As such, DOE issued the draft interpretive rule to ``make 
clear to all stakeholders'' DOE's interpretation of the definition of 
``showerhead'' with respect to the 2.5 gpm maximum water use 
requirement. Id. at 1-2.
    Similarly, in the 2011 Enforcement Guidance, DOE explained that it 
had learned that some had come to believe that a showerhead that expels 
water from multiple nozzles constituted not a single showerhead, but 
rather multiple showerheads and thus could exceed the maximum permitted 
water use. (See https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf) DOE further acknowledged that 
absence of enforcement could have contributed to that misunderstanding. 
Id. at 2. While DOE acknowledged such confusion, DOE withdrew the 2010 
Draft Interpretive Rule in the enforcement guidance document based on 
its conclusion that the term ``any showerhead'' has been, and continues 
to

[[Page 38598]]

be, sufficiently clear such that no interpretive rule is needed. Id. In 
the enforcement guidance, DOE stated that multiple spraying components 
sold together as a single unit designed to spray water onto a single 
bather constitute a single showerhead for purposes of the maximum water 
use standard. Id. DOE provided manufacturers a two-year grace period to 
sell any remaining noncompliant products and to adjust product designs 
for compliance with EPCA and DOE regulations. Id. at 3.
    The ambiguity of the word ``showerhead'' in EPCA is underscored by 
its history. DOE's statements in both the 2010 Draft Interpretive Rule 
and the 2011 Enforcement Guidance illustrate that confusion existed 
among manufacturers about what constituted a showerhead under the 
statutory definition. Since the passing of EPAct 1992 and the 
establishment of a regulatory definition for ``showerhead'', the market 
diversified into a myriad of products. The diversification of the 
marketplace as it pertains to ``showerheads'', and the confusion about 
what products are considered a showerhead by manufacturers, illustrate 
that the statutory definition of ``showerhead'' is ambiguous. DOE 
believes that any ambiguity in the statutory meaning should be 
explicated by a regulatory definition that is consistent with EPCA's 
purposes.
2. The December 2020 Final Rule's Definition of Showerhead Is 
Inconsistent With EPCA's Purposes
    EPCA sets forth seven purposes that provide a basis for DOE's 
actions regarding the Energy Conservation Program. One of the most 
relevant of these purposes is ``to conserve energy supplies through 
energy conservation programs, and, where necessary, the regulation of 
certain energy uses.'' (42 U.S.C. 6201(4); Pub. L. 94-163 ((Dec. 22, 
1975)) The EPAct 1992 amended EPCA by adding plumbing products, 
including showerheads, to the products covered by the Energy 
Conservation Program. (Pub. L. 102-486 (Oct. 24, 1992)) The EPAct 1992 
also added another purpose under EPCA to address plumbing products: 
``to conserve water by improving the water efficiency of certain 
plumbing products and appliances.'' (42 U.S.C. 6201(8))
    DOE has considered the relationship between the definition of 
``showerhead'', the 2.5 gpm EPCA standard, and EPCA's purposes to 
conserve water and energy in both the 2010 Draft Interpretive Rule and 
2011 Enforcement Guidance. DOE believes that the December 2020 Final 
Rule is in conflict with EPCA's water-conservation and energy-
conservation purposes. That rule allows multiple nozzles each to be 
subject to a separate standard, and thereby allows water flow at a 
multiple of that standard and the related increase of energy for water 
heating.
    This belief is consistent with DOE statements before the December 
2020 Final Rule. Specifically, in the 2010 Draft Interpretive Rule, DOE 
explained that all components that are supplied together and function 
from one inlet form a single showerhead for purposes of the maximum 
water use standards under EPCA. (See https://www.regulations.gov/document?D=EERE-2010-BT-NOA-0016-0002) DOE stated that neither the 
statutory definition nor the test procedures for showerheads treat a 
showerhead differently based upon the shape, size, placement, or number 
of sprays or openings it may have. Id. at 2. Further, DOE highlighted 
that the test procedure contemplates that the regulated showerhead 
fitting may have additional ``accessory'' water outlets and specifies 
that all standard accessories must be attached and set at maximum flow 
during testing. Id. DOE clarified that a showerhead is determined to be 
noncompliant if the standard components, operating in their maximum 
design flow configuration, taken together use in excess of 2.5 gpm. Id. 
at 3. DOE stated that this approach furthers the goal of EPCA to 
``conserve water by improving the water efficiency'' of showerheads. 
Id. In DOE's 2011 Enforcement Guidance, DOE articulated a modified 
interpretation of the statutory definition of ``showerhead'' from the 
definition proposed in the 2010 Draft Interpretive Rule. DOE stated 
that multi spraying units sold together as a single unit designed to 
spray water onto one bather are considered a single showerhead. (See 
https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf) DOE explained that all sprays and nozzles 
should be turned onto the maximum flow setting to determine water use. 
Id. DOE found this approach is consistent with the industry standard, 
the statutory language, and Congressional intent to establish a maximum 
water use requirement. Id. These previous statements by DOE illustrate 
that a definition of ``showerhead'' that includes a multi-headed 
showerhead is consistent with EPCA's purpose of water conservation.
    The 2020 rulemaking did not fully account for how its definition of 
``showerhead'' would comport with the purposes of EPCA, but it did 
acknowledge that water conservation is among EPCA's purposes. 85 FR 
81341, 81353. In this proposed rulemaking, DOE reviews the December 
2020 Final Rule's definition of ``showerhead'' as it relates to EPCA's 
express purposes of water and energy conservation. The purposes of 
EPCA, as amended, include ``to conserve water by improving the water 
efficiency of certain plumbing products and appliances'' and ``to 
provide for improved energy efficiency of motor vehicles, major 
appliances, and certain other consumer products.'' (42 U.S.C. 6201)
    DOE received comments in response to the August 2020 NOPR, many of 
which explained that the then-proposed ``showerhead'' definition was 
contrary to the purposes of the Energy Conservation Program and Federal 
laws, which are to reduce water waste and improve energy efficiency. 
(Davis, No. 0064 at p.1; Public Interest Research Group (``PIRG''), No. 
0082 at p.3; Northwest Power and Conservation Council (``NPCC''), No. 
0060 at p.2) \5\ For example, PIRG explained that the then-proposed new 
interpretation was contrary to the 2.5 gpm standard and the goals of 
EPCA as it would permit higher water usage. PIRG further explained that 
the then-proposed interpretation would eviscerate the 2.5 gpm standard, 
because the water flow available in a shower would be simply a matter 
of choice, between manufacturer and consumer, about how many nozzles to 
use. PIRG stated that Congress could not have intended this 
conservation standard to be so illusory. (PIRG, No. 0082 at p.3) The 
NPCC stated that the proposal, if finalized, would undermine the DOE 
standards program by establishing revised definitions and an agency 
interpretation that circumvent the associated standard. The NPCC 
explained also that this proposal would undercut DOE's appliance 
program and diminish cost-effective energy savings and benefits 
contrary to the purpose of EPCA. (NPCC, No. 0060 at p.2) Similarly, 
ASAP \6\ stated that the proposal allowed for unlimited flow because 
there was no limit on the

[[Page 38599]]

number of spray units a single product might have and this 
interpretation undermined the very purpose of the statute. (ASAP, No. 
0086 at p.2) Hare also suggested that the aggregate flow rate would be 
too high to achieve water savings, thereby subverting the purported 
reason for the existence of the regulation. (Hare, No. 0012)
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    \5\ The parenthetical reference provides a reference for 
information located in the docket of DOE's rulemaking to amend the 
definition of showerhead. (Docket No. EERE-2020-BT-TP-0002, which is 
maintained at https://www.regulations.gov/#!docketDetail;D=EERE-
2020-BT-TP-0002). The references are arranged as follows: 
(Commenter, comment docket ID number, page of that document).
    \6\ DOE received a joint comment from the Appliance Standards 
Awareness Project, Alliance for Water Efficiency, consumer 
Federation of America, the National Consumer Law Center, the Natural 
Resources Defense Council, the Northwest Energy Efficiency Alliance, 
and the American Council for an Energy-Efficiency Economy, 
collectively referred to as ASAP.
---------------------------------------------------------------------------

    Other comments that DOE received on the August 2020 NOPR similarly 
discuss the impacts of the proposal on water and energy consumption. 
Numerous commenters stated that the proposal would increase water and 
energy consumption. (California Investor Owned Utilities (``CA IOUs''), 
Public Meeting Transcript at p. 13; Consumer Federation of America 
(``CFA''), No. 0029; CFA, Public Meeting Transcript at p.14; 
Environment America,\7\ No. 0069 at p.1) Commenters specified that the 
proposal would waste water and energy because more energy would be 
needed to heat and pump the additional water. (Godwin, No. 0042; Hall, 
No. 0048; Shaw, No. 0059; Gurley, No. 35) The Green Builder Coalition 
highlighted that the increased water flow and usage would increase 
energy usage from the municipal side used to pump and treat the 
increased water demands. (Green Builder Coalition, Public Meeting 
Transcript at p.35)
---------------------------------------------------------------------------

    \7\ The Environment America comment received 10,184 signatories.
---------------------------------------------------------------------------

    Commenters also addressed the current water shortages the country 
is facing. Numerous stakeholders commented that 40 of the 50 states are 
already confronting water shortages and that the proposal would 
increase consumption of drinking water, causing a severe impact on 
water supplies across the country. (Walnut Valley Water District 
(``WVWD''), No. 0051 at p.2; Alliance for Water Efficiency, et al.\8\ 
(``AWE, et al.''), No. 0079 at p.3; Santa Clara Valley Water District 
(``Valley Water''), No. 0076 at p.1; Bay Area Water Supply & 
Conservation Agency (``BAWSCA'', No. 0050 at p.3) Lish explained that 
the Southwest was suffering a drought and that event after event 
illustrated the importance of reducing energy consumption that produces 
GHG emissions. (Lish, No. 0057) Cohen also commented that the proposed 
changes would allow wasteful showers in a wide variety of 
configurations and increase consumption of drinking water at a time 
that wide regions of the country are already facing severe shortages. 
(Cohen, No. 0036)
---------------------------------------------------------------------------

    \8\ The AWE stakeholders submitted two versions of their 
stakeholder letter. The first version is comment No. 0072; the 
second letter, which includes additional signatures, is the version 
referenced throughout this document.
---------------------------------------------------------------------------

    Regarding water consumption, the CA IOUs projected that a single-
shower household shifting to a three-spray component product could 
increase the overall hot water use for that household by as much as 
80%. (CA IOUs, No. 0084 at p.6) Further, the CA IOUs estimated that if 
10% of current showerheads were converted to three-spray component 
products, national residential hot water use, the second largest 
component of residential site energy consumption, could increase by as 
much as eight percent. (CA IOUs, No. 0084 at p. 6) Similarly, Gary 
Klein Associates (``GKA'') stated that switching to a 2-headed 
showering device increases hot water use by 40%, while switching to a 
3-headed device increases it by 80%. (GKA, No. 0063 at p.11) Tucson 
Water also noted that changing the definition of ``showerhead'' 
effectively allowed multiple showerheads in the same stall, 
disregarding the existing federal standard of 2.5 gpm per shower and 
potentially doubling, or more, the amount of water used per shower. 
(Tuscan Water, No. 0053 at p. 1) And numerous commenters estimated that 
increasing the current federal legal standard of 2.5 gpm for the entire 
shower could result in a national water increase of 161 billion gallons 
in a single year. (Valley Water, No. 0076 at p. 1; WVWD, No. 0051 at 
p.2; BAWSCA, No. 0050 at p.3; AWE, et al., No. 0079 at p.2))
    Texas Water Development Board (``TWDB'') stated that a change in 
the definition of ``showerhead'' would most likely lead to a reduction 
in the anticipated water savings and an increase in the state's future 
municipal water demands. If these water savings are not achieved 
through conservation, future water demands will likely require 
additional, and more expensive, water management strategies and 
projects. (TWDB, No. 0074 at p.2)
    Commenters also discussed the impact of increased water consumption 
on energy use. Commenters estimated that for each 1 gpm increase in 
showerhead flow rate, national annual domestic water use would increase 
by 55 billion gallons and national annual energy use for that added hot 
water would increase by 25,000 billion Btu. (WVWD, No. 0051 at p.3; 
BAWSCA, No. 0050 at p.4; AWE, et al., No. 0079 at p.3) This use would, 
in turn, increase annual water and energy bills for American consumers 
by an estimated $1.14 billion. (WVWD, No. 0051 at p.3; BAWSCA, No. 0050 
at p.4; AWE, et al., No. 0079 at p.3; Davis, No. 0064 at p.1) The 
Public Service Commission of Wisconsin (``PSC of Wisconsin'') stated 
that showerheads affect a customer's energy use as showers represent 
the number one use of hot water inside the home and a reduction in 
shower water efficiency would require customers to use additional 
energy to heat water, increasing customers' energy use and resulting 
energy bills. (PSC of Wisconsin, No. 0061 at p.2)
    NPCC estimated that the Northwest currently has about 10 million 
showerheads and increasing the water use per shower by a factor of two 
or more would have a significant impact on the consumption of 
electricity, natural gas, and water, which would result in increased 
power supply needs. (NPCC, No. 0060 at p.2) NPCC stated the impacts of 
the proposed rule include increased electricity or natural gas 
consumption by the consumer, increased water use by the consumer, 
decreased utility by the consumer, increased burden and cost on the 
water utility, increased burden and cost on wastewater treatment 
facilities, possible changes to plumbing, and needs for larger water 
heater storage tanks. (NPCC, No. 0060 at p.2) Similarly, the Sierra 
Club and Earthjustice commented that the proposal would result in 
greater consumption of hot and cold water, increasing fossil fuel and 
electricity consumption, and the accompanying emissions of air 
pollutants that harm the health and welfare of its members. (Sierra 
Club and Earthjustice, No. 0085 at p.1)
    The Los Angeles Department of Water and Power (``LADWP'') discussed 
how the proposed rulemaking would allow for devices that increase 
consumption of water, resulting in a greater need for energy, which in 
turn would generate more GHGs that would not be produced with fixtures 
that use less water. LADWP stated this increase would be due to the 
embedded energy and GHG impacts in treating, pumping, and moving water 
hundreds of miles across the state for delivery to LADWP and other 
suppliers. (LADWP, No. 0066 at pp.2-3) Shaw also noted that an increase 
in the amount of energy used to heat water would increase the amount of 
carbon emitted into the atmosphere, exacerbating global warming. (Shaw, 
No. 0059) The City of Santa Rosa Water Department (``Santa Rosa 
Water'') commented that loosening low flow standards would likely 
increase energy consumption and associated GHGs, which are a 
contributing factor to climate induced drought. (Santa Rosa Water, No. 
0037 at p.2) Additional stakeholders commented that adopting the then-
proposed ``showerhead'' definition

[[Page 38600]]

would increase energy use from water wasting showerheads and increase 
GHG emissions because of the need to heat and pump excess water, 
increasing energy bills. (Hall, No. 0048; Gooch, No. 0043; Shaw, No. 
0059)
    DOE has fully considered these comments in this rulemaking as they 
relate to December 2020 Final Rule's definition of ``showerhead.'' 
During the 2020 rulemaking, DOE discussed these comments and noted the 
importance of water conservation, but DOE focused solely on the 
Congressional reliance on ASME for the definitional changes. See 85 FR 
81341, 81353. DOE believes that EPCA's purposes should also be 
considered when amending the definition of a covered product. DOE 
agrees with the commenters that the December 2020 Final Rule's 
``showerhead'' definition and interpretation would likely increase 
water usage, increase associated energy use, and increase GHG 
emissions. These increases would be contrary to EPCA's purposes of 
reducing energy and water consumption. As such, DOE has tentatively 
determined that the December 2020 Final Rule's definition should be 
withdrawn.
    DOE's full consideration of comments received in the response to 
the August 2020 NOPR and of the purposes of EPCA has also informed this 
proposed approach of restoring the definition of ``showerhead'' from 
the October 2013 Final Rule. In response to the August 2020 NOPR, PIRG 
noted that DOE's past rules on this topic (in 2011 and in 2013) had 
clearly taken account of the primary EPCA goal of decreased water use. 
(PIRG, No. 0082 at p.3) ASAP commented that the definition from the 
2013 Final Rule carried out the conservation purpose of EPAct 1992. 
(ASAP, No. 0086 at p.2)
    DOE also received comments on the impacts of the then-existing 
definition of ``showerhead'' and EPAct 1992 generally. Ruff explained 
that the water efficiency mandates in EPAct 1992 have helped drive down 
and conserve household water use. (Ruff, No. 0010) Hamilton further 
commented that the then-current rules save consumers and water 
treatment jurisdictions money. (Hamilton, No. 0028) Cohen estimated 
that the then-current rule has saved billions of dollars in water and 
energy bills. (Cohen, No. 0036) The City of Sacramento Department of 
Utilities (``City of Sacramento'') stated that, in California, as 
global temperatures rise, reduced winter snowpack will negatively 
impact local water availability, and drought frequency may increase. 
Efficient water use is the most cost-effective way to achieve long-term 
conservation goals and ensure reliable water supply for future 
generations. (City of Sacramento, No. 0055 at p.3)
    Commenters also estimated the water use reductions of cities and 
states due to water efficiency measures. BAWSCA estimated that since 
the 1992 federal adoption of the 2.5 gpm showerhead standard, its 
service area has saved more than 33.1 billion gallons of water with 2.2 
billion gallons of water savings in 2020 alone as a result of savings 
from installing efficient 2.5gpm showerheads. BAWSCA also explained 
that there are also additional benefits accumulating from the 2.2 
billion gallons in avoided wastewater treatment and hot water savings 
and cost. (BAWSCA, No. 0050 at p.2) The TWDB explained that the 
replacement of older showerheads with the current 2.5 gpm showerheads, 
under the October 2013 Final Rule definition of ``showerhead'', was 
expected to save a cumulative 40,000 acre-feet of water in 2020 and 
176,000 acre-feet in 2020 and reduce future municipal water demands of 
the state by approximately 6-10%. (TWDB, No. 0074 at p.1) And the City 
of Sacramento provided estimated savings from the 2.5 gpm flow rate and 
noted that in 2020 alone the City had saved 860 million gallons of 
water. (City of Sacramento, No. 0055 at p.2)
    Numerous commenters also cited AWE estimates that 2.5 gpm 
showerheads provide 11 billion gallons per year in water savings and 5 
trillion Btu per year in energy savings. (BAWSCA, No. 0050 at p.4; 
WVWD, No. 0051 at p.3; AWE, et al., No. 0079 at p.4) In ten years, the 
savings for 2.5 gpm showerheads at the federal standard alone 
accumulate to the equivalent of supplying 1 million homes with water 
and 670,000 homes with energy. (BAWSCA, No. 0050 at p.4; WVWD, No. 0051 
at p.3; AWE, et al., No. 0079 at p.4; Davis, No. 064 at p.1)
    DOE agrees with the commenters that the definition of 
``showerhead'' from the October 2013 Final Rule and the associated 
interpretation resulted in significant water and energy savings, 
protected the environment, and reduced GHG emissions. As discussed 
above, while DOE focused on ASME in the 2020 rulemaking, DOE believes 
that the EPCA's purposes should also be considered when amending the 
definition of a covered product. As such, the definition of 
``showerhead'' from the October 2013 Final Rule is consistent with the 
purposes of EPCA for water and energy conservation, whereas the 
December 2020 Final Rule's definition is not. Further, the definition 
of ``showerhead'' from the October 2013 Final Rule also corresponds 
with the general concept of the term ``showerhead'' in the 2010 Draft 
Interpretive Rule and 2011 Enforcement Guidance. While the specific 
language used by DOE has changed between the three documents, each 
document's definition considered all components attached to a single 
supply fitting/inlet to be a single showerhead. As explained 
previously, the October 2013 Final Rule understanding of showerheads 
better implements the purposes of EPCA than the December 2020 Final 
Rule's definition. Accordingly, DOE has tentatively determined that the 
proposed definition of ``showerhead'' better effectuates the purposes 
of EPCA. Therefore, DOE proposes that, in withdrawing the definition of 
``showerhead'' from the December 2020 Final Rule, the definition of 
``showerhead'' from the October 2013 Final Rule be reinstated.
3. Congress Did Not Require Reliance on ASME for the Definition of 
``Showerhead''
    DOE thus tentatively departs from the view expressed in the 
December 2020 Final Rule that it would be more consistent with 
Congressional intent to rely on ASME for the definition of 
``showerhead.'' 85 FR 81341, 81342. As discussed, that term is 
ambiguous, and DOE believes that the definition of ``showerhead'' from 
the October 2013 Final Rule better comports with the EPCA's purposes.
    DOE does not believe Congress required reliance of the ASME 
definition. Congress adopted the definition of ``showerhead'' in EPAct 
1992, along with the provisions related to definitions, standards, test 
procedures, and labeling requirements for plumbing products. (Pub. L. 
102-486; Oct. 24, 1992 Sec. 123) EPAct 1992 and EPCA define the term 
``showerhead'' as ``any showerhead (including a handheld showerhead), 
except a safety shower showerhead.'' (42 U.S.C. 6291(31)(D)) In the 
same paragraph, Congress provided explicit direction to define the 
terms ``water closet'' and ``urinal'' in accordance with ASME 
A112.19.2M, but did not do so with respect to ``showerhead.'' (Cf. Sec. 
123(b)(5) of Pub. L. 102-486) Instead, for showerheads, Congress 
adopted the ASME standards only for the water conservation standard, 
test procedures, and labeling requirements. For those, Congress adopted 
ASME A112.18.1M-1989 as the applicable standard and required DOE to 
adopt the revised version of the standard, unless it conflicted with 
the other requirements of EPCA. (42 U.S.C. 6295(j)(1) and (3); 42 
U.S.C. 6293(b)(7); 42 U.S.C. 6294(a)(2)(E)) These Congressional

[[Page 38601]]

actions illustrate Congress' intent in regard to how DOE should define 
the term ``showerhead.'' Notably, Congress did not explicitly require 
that ``showerhead'' be defined in conformity with the definition in the 
applicable ASME standard (assuming the definition of showerhead was 
included in the 1989 standard) as it did with other aspects of the 
Energy Conservation Program for plumbing products.
    In the December 2020 Final Rule, DOE determined that interpreting 
the term ``showerhead'' consistent with the ASME definition would be 
more appropriate than DOE's previous interpretation of ``showerhead.'' 
85 FR 81341, 81342. DOE noted that EPCA relies on ASME standards for 
the test method, the standards, and the marking and labeling 
requirements for showerheads.\9\ Because these other provisions relate 
to the ASME standard, the December 2020 Final Rule stated that Congress 
clearly intended that the ``showerhead'' definition would also align 
with the ASME standard. 85 FR 81341, 81345. DOE also highlighted that 
the definitions immediately preceding showerheads, in the definition 
section, included definitions of ASME and ANSI. Id. (citing 42 U.S.C. 
6291(31)(B)-(C)) DOE explained that, while EPCA does not include an 
explicit direction regarding the definition of showerhead, DOE has 
found that reliance on the ASME standard for this final rule is 
consistent with Congress's reliance on ASME. In particular, DOE stated, 
if the definition developed by DOE deviated significantly from the ASME 
definition, it would create confusion in how to apply the standards and 
test methods that Congress directed be consistent with ASME. 85 FR 
81341, 81346.
---------------------------------------------------------------------------

    \9\ (See 42 U.S.C. 6295(j)(1) and (3); 42 U.S.C. 6295(b)(7); 42 
U.S.C. 6294(a)(2)(E)).
---------------------------------------------------------------------------

    DOE has fully considered the comments that it received in response 
to the August 2020 NOPR, regarding the NOPR's suggestion that Congress 
intended that DOE's actions with regard to showerheads be consistent 
with ASME. PIRG stated that DOE's reasoning for following the ASME 
definition of ``showerhead'' is not consistent with EPCA or with EPAct 
1992. Specifically, PIRG noted that Congress did not refer the 
``showerhead'' definition back to the ASME standard even though, in the 
same paragraph, EPCA provides that certain other terms have ``the 
meaning given such term in ASME A119.19.2M-1990.'' PIRG also stated 
that the references to ASME in the definition, energy conservation 
standard, and labeling requirements do not have anything to do with 
what constitutes and does not constitute a showerhead.\10\ PIRG 
explained that Congress's use of ASME standards in EPAct 1992 was 
surgically precise. (PIRG, No. 0082 at pp.6-7)
---------------------------------------------------------------------------

    \10\ The ASME references in the energy conservation standard 
discuss design requirements in relation to EPAct 1992's 2.5 gpm 
maximum flow rate; the references do not purport to define 
``showerhead.'' (42 U.S.C. 6295(j)) Although section 6294(a)(2)(e) 
requires the Federal Trade Commission to prescribe labeling rules 
for showerheads consistent with ASME A112.18.1M-1989, nothing in 
that section shines any light on the definition of ``showerhead.'' 
(PIRG, No. 0082 at p.7)
---------------------------------------------------------------------------

    Upon further consideration, DOE agrees with the commenters that 
Congress did not intend that the definition of ``showerhead'' be 
required to conform with the definition of ``showerhead'' in the ASME 
standard. This interpretation comports with Congress's decision not to 
align the ``showerhead'' definition with the ASME standard, and it also 
better reflects the policies embodied in EPCA. As highlighted by PIRG, 
EPCA provides explicit direction to define the terms ``water closet'' 
and ``urinal'' in accordance with ASME A112.19.2M, in the same 
legislation and paragraph, as it adopted the definition of 
``showerhead''--which did not include a reference to applicable ASME 
standard. (See Sec. 123(b)(5) of Pub. L. 102-486) Further, the mere 
fact that the terms immediately preceding showerhead are ``ASME'' and 
``ANSI'' does not suggest that Congress intended for DOE to rely on the 
ASME definition. EPCA directly references ASME A112.18.1M-1989 or a 
revised version of the standard approved by ANSI for showerhead test 
procedures, energy conservation standards, and labeling requirements, 
but noticeably does not provide such a reference for the definition of 
``showerhead.'' Congress clearly illustrated in EPAct 1992 that if it 
had intended for DOE to apply the definition of ``showerheads'' from 
ASME A112.18.1M-1989 (assuming a definition of ``showerhead'' was 
include in the 1989 standard), it would have provided the necessary 
reference. Therefore, DOE believes that Congress intended DOE to have 
flexibility to define ``showerhead'' without necessarily conforming 
with the definition in the applicable ASME standard.
4. The Previous Definition of ``Showerhead'' Did Not Effectively Ban 
Multi-Headed Showerheads
    EPCA contains a provision that prevents the Secretary from 
prescribing an amended or new standard if the Secretary finds that 
interested persons have established by a preponderance of the evidence 
that the standard is likely to result in the unavailability in the 
United States in any covered product type (or class) of performance 
characteristics (including reliability), features, sizes, capacities, 
and volumes that are substantially the same as those generally 
available in the United States at the time of the Secretary's finding. 
(42 U.S.C. 6295(o)(4))
    In the August 2020 NOPR, DOE proposed to adopt an amended 
definition of ``showerhead'' that complies with the Congressional 
directive to preserve performance characteristics and features that 
were available on the market at the time DOE originally acted to 
eliminate them. 85 FR 49284, 49291. DOE explained that it cannot 
regulate or otherwise act to remove products with certain performance 
characteristics and features from the market given the prohibition in 
42 U.S.C. 6295(o)(4). 85 FR 49284, 49290. In the December 2020 Final 
Rule, DOE further explained that considering two, three or eight 
showerheads in a given product to be a ``feature'' is consistent with 
DOE's previous rulemakings and determinations of what constitutes a 
feature.\11\ 85 FR 81341, 81347. DOE stated that following the 2011 
Enforcement Guidance, which appeared to effectively ban the vast 
majority of products with multiple showerheads from the market, DOE 
codified in DOE regulations its effective ban on products with multiple 
showerheads from the market. 85 FR 49284, 49291. Further, DOE 
acknowledged, as is the case with the August 2020 definitional proposed 
rule, that the 2013 rule was not a standards rulemaking and did not 
comply with the statutory requirements of a standards rulemaking. DOE 
stated, however, that the effect was the same in that multi-headed 
showerhead products, while not entirely eliminated from the market, 
were significantly reduced in availability as a result of the 2011 
Enforcement Guidance. 85 FR 81341, 81347.
---------------------------------------------------------------------------

    \11\ DOE has previously determined that refrigerator-freezer 
configurations, oven door windows, and top loading clothes washers 
configurations are all features. 85 FR 81341, 81347 (citing 84 FR 
33869, 33872 (July 16, 2019)).
---------------------------------------------------------------------------

    As part of DOE's reconsideration of the December 2020 Final Rule, 
DOE reviewed comments received in response to the August 2020 NOPR's 
discussion of section 6295(o)(4) of EPCA. The California Energy 
Commission (``CEC'') explained that, based on the plain language of the 
statute, section 6295(o)(4) of EPCA applies only to standards and the

[[Page 38602]]

October 2013 Final Rule did not directly or effectively amend any 
standards. But CEC also clarified that assuming, arguendo, that section 
6295(o)(4) of EPCA is relevant, DOE's own analysis shows that at least 
3% of the existing market consists of multi-headed showerheads that 
meet the current standard. As such, no performance characteristics were 
eliminated from the market. (CEC, No. 0083 at p.6)
    DOE agrees with CEC and DOE's own statement in the December 2020 
Final Rule that the October 2013 Final Rule was not a standards 
rulemaking. Assuming arguendo that DOE did amend the water conservation 
standard or that the rule had the effect of a water conservation 
standard, the October 2013 Final Rule did not eliminate multi-headed 
showerheads from the market. DOE explained in the August 2020 NOPR that 
3% of the 7,221 basic models of showerheads are multi-headed 
showerheads. 85 FR 49284, 49293. DOE has again reviewed its 
certification database and found that currently there are 7,704 basic 
models of showerheads, with multi-headed showerheads continuing to 
account for 3% of all basic models. Therefore, 42 U.S.C. 6295(o)(4) was 
not applicable in the October 2013 Final Rule as DOE did not amend the 
standard for showerheads there, nor did the rule eliminate multi-headed 
showerheads from the market as there are currently over 231 basic 
models on the market. Further, as multi-headed showerheads have not 
been eliminated from the market, DOE is not determining whether multi-
headed showerheads provide a functionality/performance characteristic. 
(See 42 U.S.C. 6295(o)(4)) As such, the existing definition complied 
with the Congressional directive to preserve performance 
characteristics and features and the directive did not provide a basis 
for adoption of a new definition.
5. The December 2020 Final Rule's Definition of ``Showerhead'' Falls 
Within the NTTAA and OMB Circular A-119 Exception to Adherence to 
Voluntary Consensus Standards Because It Is Inconsistent With EPCA and 
Impractical
    Section 12(d)(1) of NTTAA requires that Federal departments ``use 
technical standards that are developed or adopted by voluntary 
consensus standards bodies, except when the use of the technical 
standards is inconsistent with applicable law or otherwise 
impractical.'' (Pub. L. 104-113, 110 Stat. 783 (Mar. 7, 1996), as 
amended by Pub. L. 107-107, Div. A, Title XI, section 115, 115 Stat. 
1241 ((Dec. 28, 2001) (codified at 15 U.S.C. 272 note)). Similarly, OMB 
Circular A-119 directs Federal agencies to use voluntary consensus 
standards unless inconsistent with applicable law or otherwise 
impractical. (Section 1 of OMB Circular A-119; https://www.whitehouse.gov/wp-content/uploads/2020/07/revised_circular_a-119_as_of_1_22.pdf.)
    In the December 2020 Final Rule, DOE stated that the new definition 
of ``showerhead'' is consistent with the requirements of the NTTAA and 
the associated OMB Circular A-1119. 85 FR 81341, 81342. DOE explained 
that EPCA does not preclude DOE from using industry standards and that 
the statutory text of EPCA does not make compliance with OMB Circular 
A-119 inconsistent with applicable law or otherwise impracticable. DOE 
further stated that it disagrees that the ASME definition frustrates 
and is inconsistent with the requirements of EPCA. 85 FR 81341, 81348.
    As part of DOE's reconsideration of the December 2020 Final Rule, 
DOE tentatively determined, in light of the comments provided during 
the August 2020 NOPR, that it is not appropriate to rely on the 
consensus industry standards as they relate to showerheads in 
accordance with the NTAA and OMB Circular A-119 because the current 
``showerhead'' definition based on ASME consensus industry standards is 
inconsistent with EPCA and is impractical.
    DOE received comments on the August 2020 NOPR regarding the 
appropriateness of DOE relying on the voluntary consensus standard 
developed by ASME in accordance with the NTAA and OMB Circular A-119. 
NRDC noted that the reference to A-119 and DOE's explanation of it 
clearly points out the inappropriateness of the proposed change in the 
definition, because the ASME definition frustrates and is inconsistent 
with the statutory requirement to establish and maintain an upper bound 
on the flowrate of showerheads and that adopting the proposed 
definition would allow multi-nozzle arrays without any upper bound of 
the combined flowrate of this kind of shower device. (NRDC, Public 
Meeting Transcript at pp.21-22) Similarly, PIRG commented that the 2.5 
gpm standard was not a policy objective determined by DOE; it was a 
water conservation standard determined by Congress. PIRG further stated 
that the NTTAA does not instruct DOE to base its interpretation of 
Congressional policy by referring to industry standards and that even 
if it did, NTTAA itself states that an agency should not follow an 
industry standard where that is inconsistent with applicable law. PIRG 
explained that DOE's proposal is inconsistent with EPAct 1992, and thus 
NTTAA provides no safe harbor. As discussed, EPAct 1992 described in 
detail how the showerheads program should interact with ASME 
standards--NTTAA does not repeal or amend those directives. In regard 
to OMB Circular A-119, PIRG commented that DOE's reliance on OMB 
Circular A-119 is misplaced for the same reasons. In particular, as 
PIRG commented, Congress specified the policy goals that DOE must 
consider when it makes rules under EPCA; Circular A-119 could not 
supplant those policy goals with an extra-statutory mandate. (PIRG, No. 
0082, pg.8) Sierra Club and Earth Justice highlighted that even if OMB 
Circular A-119 ordinarily requires agencies to use voluntary consensus 
standards as described by NTTAA, the Circular contains an expansive 
exception based on the impracticality of compliance. Sierra Club and 
Earth Justice cited to Circular A-119's definition of ``impractical'' 
as including ``circumstances in which such use would fail to serve the 
agency's program needs; would be infeasible; would be inadequate, 
ineffectual, inefficient, or inconsistent with agency mission; or would 
impose more burdens, or would be less useful, than the use of another 
standard.'' \12\ Sierra Club and Earth Justice commented also that to 
the extent adhering to the ASME standard would result in increased 
showerhead consumption, DOE was within its rights in elevating the 
fulfillment of EPCA's purpose above the encouragement of consensus 
industry standards. (Sierra Club and Earthjustice, No. 0085, pp.3-4)
---------------------------------------------------------------------------

    \12\ See OMB Circular A-119 s 6.a.2.
---------------------------------------------------------------------------

    DOE agrees with the commentators that DOE should not adopt an 
industry standard here, where it would conflict with EPCA's 
requirements and be impractical. (See 15 U.S.C. 272 note; OMB Circular 
A-119 s6.a.2) DOE's determination in the December 2020 Final Rule did 
not properly weigh the ASME definition of ``showerhead'' as compared to 
the purposes of EPCA, as it pertains to the NTTAA and OMB Circular A-
119. Upon reconsideration, DOE now believes that adopting the ASME 
industry standards for the definition of ``showerhead'' here conflicts 
with EPCA and is impractical because it would not serve the purposes of 
water and energy conservation. The ``showerhead'' definition and 
interpretation in the December 2020 Final Rule is inconsistent with 
EPCA and is impractical because it would likely increase water usage, 
increase

[[Page 38603]]

associated energy use, and increase GHG emissions, directly contrary to 
EPCA's purposes. As discussed in section III.A.2 of this document, DOE 
has tentatively determined that the December 2020 Final Rule's 
definition of ``showerhead'' is inconsistent with EPCA's purposes of 
water and energy conservation. Therefore, the NTTAA and OMB Circular A-
119 authorize and comprehend DOE's departure from the use of the 
voluntary consensus standard developed by ASME in ASME/ANSI A112.18-1-
2018 for the definition of ``showerhead'' because it would be 
inconsistent with EPCA and impractical.

B. Withdrawal of DOE's Current Definition of ``Body Spray''

    DOE adopted a definition for ``body spray'' in the December 2020 
Final Rule. DOE defined the term ``body spray'' as ``a shower device 
for spraying water onto a bather from other than the overhead position. 
A body spray is not a showerhead.'' 85 FR 81341, 81359. After a 
reconsideration of this definition, DOE proposes to withdraw the 
definition of ``body spray.''
    In the December 2020 Final Rule, DOE concluded that the definition 
of ``showerhead'' in the October 2013 Final Rule did not specifically 
include or exclude body sprays and that this omission may have 
introduced uncertainty for regulated parties and therefore it is 
appropriate to clarify that body sprays are not showerheads. 85 FR 
81341, 81350. DOE also stated that leaving the scope of products not 
subject to EPCA's energy conservation standard undefined, and 
potentially subjecting manufacturers of body sprays to DOE standards, 
causes more confusion than establishing a regulatory definition. As 
such, DOE determined that it was appropriate to clarify the existing 
ambiguity following the October 2013 Final Rule that did not include 
body sprays within the definition of ``showerhead,'' and also did not 
define what constituted a ``body spray.'' 85 FR 81341, 81350.
    As part of its review of the definition of ``body spray'', DOE has 
reconsidered comments received in response to the August 2020 NOPR. 
Several commenters expressed concern that the proposal, to define the 
term ``body spray'' to clarify that these products are not subject to 
the current energy conservation standards, would result in wasteful and 
unnecessary ``deluge'' showers, which would also consume much more hot 
water. (WVWD, No. 0051 at p.2; BAWSCA, No. 0050 at p.3; AWE, et al., 
No. 0079 at p.2) Further, Valley Water explained that redefining body 
sprays signals that these products are not subject to the current 
energy conservation standards and thus can flow at any rate, resulting 
in an increase in water and energy use and a financial strain for 
American households. (Valley Water, No. 0076 at p.1)
    Other commentators highlighted that the then-proposed definition of 
``body spray'' was unnecessary because there was no technical 
difference between a showerhead and a body spray to warrant a separate 
definition. (CEC, No. 0083 at p.3; CA IOUs, Public Meeting Transcript 
at p.22; CA IOUs, No. 0084 at pp.3-5) CEC noted their concern that the 
then-proposed definition of ``body spray'' relied on manufacturer 
intent and consumer installation decisions, rather than discernable 
technical differences between products. (CEC, No. 0083 at p.3) The CA 
IOUs commented that, in their research, they have been unable to 
identify a technical difference between body sprays and showerheads 
other than the orientation of installation. (CA IOUs, Public Meeting 
Transcript at p.22) The CA IOUs conducted a review of retailer websites 
that indicated that shower units with body spray capability are 
generally marketed or sold as combination shower systems or shower 
panels with an overhead showerhead component. The CA IOUs stated that 
industry considers body sprays a form of showerhead. The CA IOUs 
further explained that the marketplace does not clearly distinguish 
stand-alone body sprays from conventional showerheads and that the 
market tends to include body spray capability in all-in-one shower 
systems. The CA IOUs found that all stand-alone body sprays and all-in-
one shower systems identified in their research complied with the 
current water conservation standards. (CA IOUs, No. 0084 at pp.3-5)
    The CA IOUs also discussed the treatment of body sprays and 
showerheads in the 2018 ASME Standard. Specifically, the CA IOUs stated 
that the definitions of ``showerhead'' and ``body spray'' in the 2018 
ASME Standard suggests that body sprays designed and marketed as a 
stand-alone product and other showerhead devices differ only based on 
installation position in the end-use application. As such, the standard 
treats showerheads and body sprays similarly. (CA IOUs, No. 0084 at 
p.3) Further, the CA IOUs highlighted a comment made in response to the 
April 2013 SNOPR by Maximum Performance Testing. In the comment 
referenced by the CA IOUs, Maximum Performance stated that to create a 
distinction between showerheads and body sprays fails the reality test. 
In shower applications where body sprays and an overhead showerhead are 
present, there is no reason to classify one component as different than 
the other component. ((CA IOUs, No. 0084 at p.4 citing (Maximum 
Performance, EERE-2011-BT-TP-0061-0029 at p.1))
    After further consideration, DOE agrees with commenters that the 
current definition of ``body spray'' and the interpretation that body 
sprays are not a showerhead does not effectively address the 
relationship between these two products. As highlighted by the CA IOUs, 
the 2018 ASME standard, as well as the 2012 ASME standard, treat the 
products similarly and the only difference between the definitions of 
``showerhead'' and ``body spray'' is the installation location. 
Further, the market review conducted by the CA IOUs suggests that these 
two products are not treated differently in the marketplace. Given the 
similar treatment by the industry standard and the market, as well as 
the lack of discernable differences between the products, DOE believes 
that the current definition does not best address the relationship 
between these two products.
    In addition, DOE agrees that the current definition of ``body 
spray'' may result in excessive water use that is inconsistent with 
EPCA's purposes. While DOE explained in the December 2020 Final Rule 
that leaving the term ``body sprays'' undefined introduced uncertainty 
into the market about whether those products needed to comply with the 
2.5 gpm standard, the research done by CA IOUs shows that products with 
body sprays complied with the energy conservation standard. As such, 
DOE has tentatively determined that the current definition of ``body 
spray'' should be withdrawn.

C. Safety Shower Showerhead

    In the December 2020 Final Rule, DOE established a definition for 
the term ``safety shower showerhead.'' 85 FR 81341. Specifically, DOE 
defined ``safety shower showerhead'' to mean ``a showerhead designed to 
meet the requirements of ANSI/ISEA Z358.1 (incorporated by reference, 
see Sec.  430.3)'' 10 CFR 430.2. In this proposed rule, DOE does not 
propose to amend the definition of ``safety shower showerhead.'' DOE 
continues to agree with several of the findings in the December 2020 
Definition Final Rule: That leaving undefined the scope of products not 
subject to EPCA's energy conservation standard causes confusion and is 
inappropriate; that what is meant by a ``safety shower showerhead'' or 
emergency shower is understood in the regulated industry; that it is 
unlikely

[[Page 38604]]

that manufacturers of showerheads intended for use by residential 
consumers would design a showerhead to meet the specifications of the 
ANSI standard in order to avoid compliance with DOE standards; and that 
the definition and performance criteria in the definition of ``safety 
shower showerhead'' addressed concerns noted by the commenters in the 
2020 rulemaking and distinguish a showerhead from a safety shower 
showerhead. See 85 FR 81341, 81350-81351. Accordingly, DOE believes 
that retaining the definition of ``safety shower showerhead'' is 
necessary and appropriate.

IV. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    The Office of Information and Regulatory Affairs (``OIRA'') in the 
Office of Management and Budget (``OMB'') waived Executive Order 12866 
(``E.O.'') 12866, ``Regulatory Planning and Review'' review of this 
proposed rule.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis (``IRFA'') 
for any rule that by law must be proposed for public comment, unless 
the agency certifies that the rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities. 
As required by E.O. 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (Aug. 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process. 68 FR 7990. DOE has made its 
procedures and policies available on the Office of the General 
Counsel's website (https://energy.gov/gc/office-general-counsel).
    DOE reviewed this proposed rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. DOE certifies that the proposed rule, if adopted, 
would not have significant economic impact on a substantial number of 
small entities. The factual basis for this certification is set forth 
in the following paragraphs.
    The Small Business Administration (SBA) considers a business entity 
to be a small business, if, together with its affiliates, it employs 
less than a threshold number of workers or earns less than the average 
annual receipts specified in 13 CFR part 121. The threshold values set 
forth in these regulation use size standards codes established by the 
North American Industry Classification System (NAICS) that are 
available at: https://www.sba.gov/document/support-table-size-standards. Plumbing equipment manufacturers are classified under NAICS 
332913 ``Plumbing Fixture Fitting and Trim Manufacturing,'' and NAICS 
327110 ``Pottery, Ceramics, and Plumbing Fixture Manufacturing.'' The 
SBA sets a threshold of 1,000 employees or fewer for an entity to be 
considered a small business within these categories.
    This proposed rule would withdraw the current definition of 
showerhead and reinstate the prior definition of showerhead. This 
proposal would also withdraw the definition of body sprays. Finally, 
this proposal would retain the definition of safety shower showerhead. 
DOE has not found any showerheads that have been introduced into the 
market since the December 2020 Final Rule became effective that would 
meet the revised definitions in the December 2020 Final Rule. As such, 
DOE has not found any evidence of a reliance interest on the December 
2020 Final Rule. Based on the foregoing, DOE certifies that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities.

C. Review Under the Paperwork Reduction Act of 1995

    Manufacturers of showerheads must certify to DOE that their 
products comply with any applicable energy conservation standards. To 
certify compliance, manufacturers must first obtain test data for their 
products according to the DOE test procedures, including any amendments 
adopted for those test procedures. DOE has established regulations for 
the certification and recordkeeping requirements for all covered 
consumer products and commercial equipment, including showerheads. (See 
generally 10 CFR part 429.) The collection-of-information requirement 
for the certification and recordkeeping is subject to review and 
approval by OMB under the Paperwork Reduction Act (``PRA''). This 
requirement has been approved by OMB under OMB control number 1910-
1400. Public reporting burden for the certification is estimated to 
average 30 hours per response, including time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

D. Review Under the National Environmental Policy Act of 1969

    DOE is analyzing this proposed regulation in accordance with the 
National Environmental Policy Act (NEPA) and DOE's NEPA implementing 
regulations (10 CFR part 1021). DOE's regulations include a categorical 
exclusion for rulemakings interpreting or amending an existing rule or 
regulation that does not change the environmental effect of the rule or 
regulation being amended. 10 CFR part 1021, subpart D, appendix A5. DOE 
anticipates that this rulemaking, which focuses on the narrow question 
of how to define a particular product and does not otherwise impose any 
requirements, will qualify for categorical exclusion A5. This 
interpretive rulemaking would revise the definition of ``showerhead'' 
from the December 2020 Rule by reinstating the previous definition and 
otherwise meets the requirements for application of a categorical 
exclusion. See 10 CFR 1021.410. DOE has not found any showerheads that 
have been introduced into the market since the December 2020 Final Rule 
became effective that would meet the revised definitions in the 
December 2020 Final Rule. DOE will complete its NEPA review before 
issuing the final rule.

E. Review Under Executive Order 13132

    E.O. 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999), imposes 
certain requirements on Federal agencies formulating and implementing 
policies or regulations that preempt State law or that have Federalism 
implications. The Executive Order requires agencies to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and to carefully assess 
the necessity for such actions. The Executive Order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have Federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process it will follow in the development of such 
regulations. 65 FR 13735. DOE has examined this proposed rule and has 
tentatively determined that it would not

[[Page 38605]]

have a substantial direct effect on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
EPCA governs and prescribes Federal preemption of State regulations as 
to energy conservation for the products that are the subject of this 
proposed rule. States can petition DOE for exemption from such 
preemption to the extent, and based on criteria, set forth in EPCA. (42 
U.S.C. 6297) No further action is required by Executive Order 13132.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil 
Justice Reform,'' imposes on Federal agencies the general duty to 
adhere to the following requirements: (1) Eliminate drafting errors and 
ambiguity, (2) write regulations to minimize litigation, (3) provide a 
clear legal standard for affected conduct rather than a general 
standard, and (4) promote simplification and burden reduction. 61 FR 
4729 (Feb. 7, 1996). Regarding the review required by section 3(a), 
section 3(b) of E.O. 12988 specifically requires that Executive 
agencies make every reasonable effort to ensure that the regulation: 
(1) Clearly specifies the preemptive effect, if any, (2) clearly 
specifies any effect on existing Federal law or regulation, (3) 
provides a clear legal standard for affected conduct while promoting 
simplification and burden reduction, (4) specifies the retroactive 
effect, if any, (5) adequately defines key terms, and (6) addresses 
other important issues affecting clarity and general draftsmanship 
under any guidelines issued by the Attorney General. Section 3(c) of 
Executive Order 12988 requires Executive agencies to review regulations 
in light of applicable standards in section 3(a) and section 3(b) to 
determine whether they are met or it is unreasonable to meet one or 
more of them. DOE has completed the required review and determined 
that, to the extent permitted by law, this proposed rule meets the 
relevant standards of E.O. 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA'') 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Public Law 104-4, section 201 (codified at 2 U.S.C. 
1531). For a proposed regulatory action likely to result in a rule that 
may cause the expenditure by State, local, and Tribal governments, in 
the aggregate, or by the private sector of $100 million or more in any 
one year (adjusted annually for inflation), section 202 of UMRA 
requires a Federal agency to publish a written statement that estimates 
the resulting costs, benefits, and other effects on the national 
economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal 
agency to develop an effective process to permit timely input by 
elected officers of State, local, and Tribal governments on a proposed 
``significant intergovernmental mandate,'' and requires an agency plan 
for giving notice and opportunity for timely input to potentially 
affected small governments before establishing any requirements that 
might significantly or uniquely affect them. On March 18, 1997, DOE 
published a statement of policy on its process for intergovernmental 
consultation under UMRA. 62 FR 12820. DOE's policy statement is also 
available at https://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.
    This proposed rule contains neither an intergovernmental mandate 
nor a mandate that may result in the expenditures of $100 million or 
more in any one year, so these requirements under the Unfunded Mandates 
Reform Act do not apply.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This proposed rule would not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

I. Review Under Executive Order 12630

    Pursuant to E.O. 12630, ``Governmental Actions and Interference 
with Constitutionally Protected Property Rights,'' 53 FR 8859 (Mar. 15, 
1988), DOE has determined that this proposed rule would not result in 
any takings that might require compensation under the Fifth Amendment 
to the U.S. Constitution.

J. Review Under Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review 
most disseminations of information to the public under information 
quality guidelines established by each agency pursuant to general 
guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 
(Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 
(Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving 
Implementation of the Information Quality Act (April 24, 2019), DOE 
published updated guidelines which are available at https://www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has 
reviewed this proposed rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Review Under Executive Order 13211

    E.O. 13211, ``Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 (May 22, 
2001), requires Federal agencies to prepare and submit to OIRA at OMB, 
a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgates or is expected to lead to promulgation of a 
final rule, and that (1) is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use.
    This proposed rule--which would amend the definition of showerhead, 
withdraw the definition of body spray, and retain the definition of 
safety shower showerhead--would not have a significant adverse effect 
on the supply, distribution, or use of energy and, therefore, is not a 
significant energy action. Accordingly, DOE has not prepared a 
Statement of Energy Effects on this proposed rule.

V. Public Participation

A. Participation in the Webinar

    The time and date of the webinar are listed in the DATES section at 
the beginning of this document. Webinar registration information, 
participant

[[Page 38606]]

instructions, and information about the capabilities available to 
webinar participants will be published on DOE's website: https://www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=2&action=viewlive. Participants are 
responsible for ensuring their systems are compatible with the webinar 
software.

B. Procedure for Submitting Prepared General Statements for 
Distribution

    Any person who has an interest in the topics addressed in this 
proposed rulemaking, or who is representative of a group or class of 
persons that has an interest in these issues, may request an 
opportunity to make an oral presentation at the webinar. Such persons 
may submit requests to speak by email to: 
[email protected]. Persons who wish to speak should 
include with their request a computer file in WordPerfect, Microsoft 
Word, PDF, or text (ASCII) file format that briefly describes the 
nature of their interest in this rulemaking and the topics they wish to 
discuss. Such persons should also provide a daytime telephone number 
where they can be reached.
    Persons requesting to speak should briefly describe the nature of 
their interest in this proposed rulemaking and provide a telephone 
number for contact. DOE requests persons selected to make an oral 
presentation to submit an advance copy of their statements at least two 
weeks before the webinar. At its discretion, DOE may permit persons who 
cannot supply an advance copy of their statement to participate, if 
those persons have made advance alternative arrangements with the 
Building Technologies Office. As necessary, requests to give an oral 
presentation should ask for such alternative arrangements.

C. Conduct of the Webinar

    DOE will designate a DOE official to preside at the webinar and may 
also use a professional facilitator to aid discussion. The meeting will 
not be a judicial or evidentiary-type public hearing, but DOE will 
conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A 
court reporter will be present to record the proceedings and prepare a 
transcript. DOE reserves the right to schedule the order of 
presentations and to establish the procedures governing the conduct of 
the webinar. There shall not be discussion of proprietary information, 
costs or prices, market share, or other commercial matters regulated by 
U.S. anti-trust laws. After the webinar and until the end of the 
comment period, interested parties may submit further comments on the 
proceedings and any aspect of the rulemaking.
    The webinar will be conducted in an informal, conference style. DOE 
will present summaries of comments received before the webinar, allow 
time for prepared general statements by participants, and encourage all 
interested parties to share their views on issues affecting this 
proposed rulemaking. Each participant will be allowed to make a general 
statement (within time limits determined by DOE), before the discussion 
of specific topics. DOE will permit, as time permits, other 
participants to comment briefly on any general statements.
    At the end of all prepared statements on a topic, DOE will permit 
participants to clarify their statements briefly. Participants should 
be prepared to answer questions by DOE and by other participants 
concerning these issues. DOE representatives may also ask questions of 
participants concerning other matters relevant to this rulemaking. The 
official conducting the webinar will accept additional comments or 
questions from those attending, as time permits. The presiding official 
will announce any further procedural rules or modification of the above 
procedures that may be needed for the proper conduct of the webinar.
    A transcript of the webinar will be included in the docket, which 
can be viewed as described in the Docket section at the beginning of 
this NOPR. In addition, any person may buy a copy of the transcript 
from the transcribing reporter.

D. Submission of Comments

    DOE will accept comments, data, and information regarding this 
proposed rule before or after the public meeting, but no later than the 
date provided in the DATES section at the beginning of this proposed 
rule. Interested parties may submit comments, data, and other 
information using any of the methods described in the ADDRESSES section 
at the beginning of this document.
    Submitting comments via https://www.regulations.gov. The https://www.regulations.gov web page will require you to provide your name and 
contact information. Your contact information will be viewable to DOE 
Building Technologies staff only. Your contact information will not be 
publicly viewable except for your first and last names, organization 
name (if any), and submitter representative name (if any). If your 
comment is not processed properly because of technical difficulties, 
DOE will use this information to contact you. If DOE cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, DOE may not be able to consider your comment.
    However, your contact information will be publicly viewable if you 
include it in the comment itself or in any documents attached to your 
comment. Any information that you do not want to be publicly viewable 
should not be included in your comment, nor in any document attached to 
your comment. Persons viewing comments will see only first and last 
names, organization names, correspondence containing comments, and any 
documents submitted with the comments.
    Do not submit to https://www.regulations.gov information for which 
disclosure is restricted by statute, such as trade secrets and 
commercial or financial information (hereinafter referred to as 
Confidential Business Information (``CBI'')). Comments submitted 
through https://www.regulations.gov cannot be claimed as CBI. Comments 
received through the website will waive any CBI claims for the 
information submitted. For information on submitting CBI, see the 
Confidential Business Information section.
    DOE processes submissions made through https://www.regulations.gov 
before posting. Normally, comments will be posted within a few days of 
being submitted. However, if large volumes of comments are being 
processed simultaneously, your comment may not be viewable for up to 
several weeks. Please keep the comment tracking number that https://www.regulations.gov provides after you have successfully uploaded your 
comment.
    Submitting comments via email. Comments and documents submitted via 
email also will be posted to https://www.regulations.gov. If you do not 
want your personal contact information to be publicly viewable, do not 
include it in your comment or any accompanying documents. Instead, 
provide your contact information in a cover letter. Include your first 
and last names, email address, telephone number, and optional mailing 
address. The cover letter will not be publicly viewable as long as it 
does not include any comments.
    Include contact information each time you submit comments, data, 
documents, and other information to DOE. No telefacsimiles (``faxes'') 
will be accepted.
    Comments, data, and other information submitted to DOE

[[Page 38607]]

electronically should be provided in PDF (preferred), Microsoft Word or 
Excel, WordPerfect, or text (ASCII) file format. Provide documents that 
are not secured, that are written in English, and that are free of any 
defects or viruses. Documents should not contain special characters or 
any form of encryption and, if possible, they should carry the 
electronic signature of the author.
    Campaign form letters. Please submit campaign form letters by the 
originating organization in batches of between 50 to 500 form letters 
per PDF or as one form letter with a list of supporters' names compiled 
into one or more PDFs. This reduces comment processing and posting 
time.
    Confidential Business Information. Pursuant to 10 CFR 1004.11, any 
person submitting information that he or she believes to be 
confidential and exempt by law from public disclosure should submit via 
email two well-marked copies: One copy of the document marked 
``confidential'' including all the information believed to be 
confidential, and one copy of the document marked ``non-confidential'' 
with the information believed to be confidential deleted. DOE will make 
its own determination about the confidential status of the information 
and treat it according to its determination.
    It is DOE's policy that all comments may be included in the public 
docket, without change and as received, including any personal 
information provided in the comments (except information deemed to be 
exempt from public disclosure).

VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this notice of 
proposed rulemaking.

List of Subjects in 10 CFR Part 430

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Household appliances, Imports, 
Incorporation by reference, Intergovernmental relations, Small 
businesses.

Signing Authority

    This document of the Department of Energy was signed on July 15, 
2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary 
and Acting Assistant Secretary for Energy Efficiency and Renewable 
Energy, pursuant to delegated authority from the Secretary of Energy. 
That document with the original signature and date is maintained by 
DOE. For administrative purposes only, and in compliance with 
requirements of the Office of the Federal Register, the undersigned DOE 
Federal Register Liaison Officer has been authorized to sign and submit 
the document in electronic format for publication, as an official 
document of the Department of Energy. This administrative process in no 
way alters the legal effect of this document upon publication in the 
Federal Register.

    Signed in Washington, DC, on July 16, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons set forth in the preamble, DOE proposes to amend 
part 430 of chapter II, subchapter D, of title 10 of the Code of 
Federal Regulations, as set forth below:

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

0
1. The authority citation for part 430 continues to read as follows:

    Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

0
2. Section 430.2 is amended by removing the definition of ``Body 
spray'', and revising the definition of ``Showerhead'', to read as 
follows:

Sec.  430.2   Definitions.

* * * * *
    Showerhead means a component or set of components distributed in 
commerce for attachment to a single supply fitting, for spraying water 
onto a bather, typically from an overhead position, excluding safety 
shower showerheads.
* * * * *
[FR Doc. 2021-15528 Filed 7-21-21; 8:45 am]
BILLING CODE 6450-01-P
```